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State ex rel. Dewine v. Big Sky Drilling, Inc.

Court of Claims of Ohio

July 31, 2017

STATE OF OHIO ex rel. MICHAEL DEWINE OHIO ATTORNEY GENERAL Plaintiff/Counter Defendant
v.
BIG SKY DRILLING, INC., et al. Defendants/Cross-Claim Defendants and BIG SKY ENERGY, INC., et al. Defendants/Cross-Claim Plaintiffs/Counter Plaintiffs/Third-Party Plaintiffs
v.
OHIO ENVIRONMENTAL PROTECTION AGENCY Third-Party Defendant

          Sent to S.C. Reporter 9/8/17

          DECISION

          PATRICK M. MCGRATH, JUDGE

         {¶1} On March 20, 2017, the Ohio Attorney General (the AGO) filed a motion for summary judgment on behalf of the State of Ohio and Ohio Environmental Protection Agency (OEPA). Defendants and third-party plaintiffs Big Sky Energy, Inc. (BSE), Robert Barr, Sr., and Laura Barr and defendants Big Sky Drilling, Inc. (BSD), Big Sky Petroleum, LLC (BSP), and Big Sky Well Service, Inc. (BSW), did not file a response. The motion for summary judgment is now before the court for a non-oral hearing. LC.C.R. 4.

         {¶2} Civ.R. 56(C) states, in part, as follows:

         {¶3} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977).

         Procedural history

         {¶4} On January 5, 2012, the AGO brought an enforcement action pursuant to R.C. 6111 against BSE in the Ashtabula County Court of Common Pleas (the Ashtabula litigation) on behalf of the State of Ohio and the public. The complaint alleged that BSE's operations polluted a tributary of Hubbard Creek with fill and other pollutants and impacted a wetland because of grading activities at the drilling site. The suit charged BSE with polluting Ohio's waters and wetlands in violation of R.C. Chapter 6111. Mr. Robert W. Barr, Sr. is the statutory agent for BSE. Mr. Barr, Sr. and Ms. Laura Barr live in the same address in New Concord, Ohio.

         {¶5} On April 26, 2016, the AGO amended its complaint to add five additional defendants: (1) BSD, whose president and statutory agent is Mr. Robert W. Barr, Jr.; (2) BSP, whose statutory agent is Mr. Barr, Sr.; (3) BSW, whose president is Mr. Barr, Jr. and whose statutory agent is Ms. Barr; (4) Mr. Barr, Sr.; and (5) Ms. Barr.

         {¶6} In response to the AGO's amended complaint, BSE, Mr. Barr, Sr. and Ms. Barr filed a counterclaim and a third-party claim against Larry Reeder, an OEPA employee. In its counterclaim against the AGO, BSE asserted an abuse of process claim and indicated that the AGO acted maliciously and in bad faith in instituting the action against it. BSE also alleged an abuse of process claim against Mr. Reeder, stating that as an enforcement supervisor, Mr. Reeder is responsible for determining which enforcement actions should be taken and coordinating accordingly with the AGO's office. BSE's complaint alleged that during a 2013 hearing for the Ashtabula litigation, Mr. Reeder admitted that he was aware that BSE was not the owner of the property at issue. On August 9, 2016, BSE filed a petition for removal in this court. Upon review, this court dismissed Mr. Reeder as a party and replaced him with OEPA.

         {¶7} Finally, on March 20, 2017, the AGO filed a motion for summary judgment, requesting this court to dismiss this case and remand it back to the Ashtabula County Court of Common Pleas. Specifically, the AGO lists five reasons indicating why Big Sky's[1] claims are baseless:

(1) They are barred by the two-year statute of limitation in R.C. 2743.16(A).
(2) The AGO is the sole plaintiff in this case. It filed the case in a representative capacity on behalf of the State of Ohio and the public, which means that it is not an "opposing party" under Ohio Civ.R. 13, and it is not subject to a counterclaim for abuse of process. In addition, because the "State of Ohio" is not the real-party plaintiff in this case, it too is not subject to a counterclaim for abuse of process.
(3) The AGO's alleged "abuse" is solely by implication of Mr. Reeder's so-called "personal campaign against" Big Sky, and the AGO is not vicariously liable for the actions of an employee of an executive agency over which it exercises no control.
(4) OEPA is a third-party defendant, which used no "process" against Big Sky and, obviously enough, cannot be liable for "abusing" a "process" it ...

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